A client recently contacted me regarding the drafting of an easement between him and his neighbor. Easements are not that uncommon and help establish and clarify rights of the parties. It is a way to avoid conflicts in the future and ensure that certain parties will have the agreed upon rights even after an owner sells their property.
An easement is the nonpossessory right of one party to enter upon and use land in the possession of another for a specific purpose, and it obligates the possessor not to interfere with the uses authorized. Matoush v. Lovingood, 177 P.3d 1262, 1264 n. 2 (Colo. 2008). Easements come in several types depending on the parties involved. An easement appurtenant involves a servient estate (land that bears the easement) and a dominate estate (the land that is benefitted by an estate). An easement appurtenant runs with the land and will continue to burden the servient estate and will benefit the owner of the dominate estate. An easement in gross involves a servient estate that bears the easement and an individual with the right to use the servient estate that does not depend on the individual’s ownership of a particular property.
An easement can be created by a written agreement, conveyance by deed, recorded declaration, estoppel, implication, necessity or prescription. However, most people will create easements by written agreement.
A written agreement is the most common way that an easement is created between two landowners. The written agreement will detail the parameters of the easement but should also consider the following: 1) frequency and intended use; 2) whether other uses may be allowed; 3) limitations on allowed uses; 4) duration or expiration of the easement; 5) maintenance responsibilities and expectations; 6) liens against the property; 7) insuring the property. The parties should discuss and have each of these items contained in the written agreement. The written agreement should state that the easement will run with the land and should be recorded to give subsequent purchasers notice.
An easement granted by a written agreement can be terminated by a voluntary release, abandonment, merger, or adverse possession. A voluntary release occurs when a written agreement releases the servient estate of the easement or when the agreed upon event or time limit is reached. An easement can be released by abandonment if it is no longer used by the dominant estate. Merger occurs when a single owner comes to own both the servient and the dominate estates – nullifying the need for a continued easement. Adverse possession is rare, but can occur if the owner of the servient estate continuously uses the easement in a manner that is incompatible with the easement holder’s rights.
One of the issues that typically goes unnoticed is the involvement of a lender. Granting an easement will typically result in a default of most mortgages and deeds of trust. Obtaining a lender’s permission may be a barrier to completing the easement and the risk of default by pursuing the easement without permission should be sufficient to deter most people. In addition to the lender’s permission, the parties should also seek the lender’s agreement to subordinate their lien on the property. Otherwise, if the lien is not subordinate to the easement, the easement will be wiped out in any future foreclosure action by the lender. This is true with any liens on the property where foreclosure is a possibility. It is important to understand what needs to happen to create an effective easement.
Patrick Curnalia is an estate and tax planning attorney with Curnalia Law, LLC. Patrick has worked with many clients to help them achieve their planning goals. Our firm services the entire Denver area and is located near the Denver Tech Center. Find out more about how our firm can help you by visiting our website at www.curnalialaw.com.